The Good Prosecutor

Lara Bazelon is a visiting associate clinical professor of law at Loyola Law School and director of the school’s Project for the Innocent.

When Brandon Olebar walked free, it was a big deal for prosecutor Mark Larson—and not for the obvious reasons.

Olebar was charged in 2003 for breaking into the King County, Wash., house of his sister’s boyfriend and, along with eight other men, viciously assaulting him. Olebar had always maintained his innocence and he had an alibi, but after the victim identified Olebar as one of the attackers, a jury convicted him. He was sentenced to 15 years in prison.

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Olebar’s case eventually caught the attention of two law students working at the Innocence Project Northwest, which works to free wrongly convicted inmates. They believed Olebar, but there was no DNA evidence to exonerate him. What the students brought to Larson, a chief deputy in the Seattle District Attorney’s Office, was less clear-cut: sworn statements from other men who claimed to be the true perpetrators—none of whom could be prosecuted because the statute of limitations had run. The Innocence Project also produced an expert who explained the reasons why the victim—who had been beaten unconscious during the crime—may have mistakenly implicated Olebar. It wasn’t rock-solid evidence of innocence, but it was enough to spur Larson to meet with Olebar and re-interrogate the prisoner to test the new information.

In the end, Larson, whose responsibilities include evaluating post-conviction claims of innocence, was persuaded by Olebar’s continued insistence that he did not commit the crime and his flat rejection of a plea bargain that would have led to his immediate release.

Larson’s office asked a judge to dismiss the case because, as he put it, “the evidence supporting [Olebar’s] conviction was simply too thin.” And then, amazingly, Olebar received an apology from the very people who had put him in prison. “The decision to apologize was intentional and reflected our view that good institutions, like people, need to be compassionate, discerning, and possess humility,” Larson wrote in a piece for the Marshall Project, a nonprofit journalism organization that reports on issues affecting crime and criminal justice. “In this case, that meant undoing a decision that we did not believe was sound. It also just felt like the right thing to do.”

It is a misconception that prosecutors simply take the job to put people behind bars. Yes, there are bad apples, but they are a minority whose misdeeds attract a disproportionate share of media attention. The vast majority of prosecutors go into this line of work to ensure that citizens get justice—and, in a growing number of cases, that means helping to free wrongly convicted felons.

Last year, 125 men and women were released from prison because they were wrongfully convicted, according to a report by the National Registry of Exonerations. That is more than two people per week and a record number of exonerations for a given year. More than half of these cases—or 67— were overturned because of prosecutors like Mark Larson either cooperated or led the charge to set the record straight and ensure that justice was done.

The irony of my writing this essay is not lost on me. Before directing the innocence project at Loyola Law School, I spent seven years working as a deputy federal public defender where my role in the system was to vigorously defend the criminally accused regardless of whether they “did it” or not. My job description emphatically did not include singing the praises of prosecutors. But it is important to do that. We should call out bad prosecutors and punish their misconduct, of course. Just as importantly, we should make sure that honorable prosecutors get the attention and respect they deserve.

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Many exonerations receive extensive media coverage, searing into the national consciousness the image of the prisoner’s emotional reaction at the moment of freedom as we learn about the long road from hopeless, unmitigated suffering to sudden and complete redemption.

Afterwards come the recriminations. Prosecutors lied and withheld evidence. Witnesses who claimed to be 100 percent positive were in fact 100 percent wrong, coaxed or coerced into finger-pointing by overzealous police officers. Our system of justice, we are told over and over again, is irretrievably broken.

What receives less discussion is the powerful, positive narrative behind the recent statistics: the story of the good prosecutor. The National Registry of Exonerations records not only the number of exonerations, but their cause.